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Challenge Filed to Mining and Energy Commission Authority to Overturn Local Ordinances

For immediate release
Contact: Hope Taylor, Executive Director, Clean Water for NC
919-401-9600

On May 1st, Clean Water for North Carolina, a statewide environmental justice group that focuses on community empowerment, filed a constitutional challenge to the NC Mining and Energy Commission’s right to overturn local government ordinances by preemption. Such ordinances are created by local governments to protect their communities from the impacts of hydraulic fracturing, or “fracking.” Residents of three counties (Chatham, Anson and Granville) that lie over possible gas-containing shale formations in the Deep River Basin joined the suit, including two elected local government officials who advocated strongly for their protective ordinance.

The “complaint for declaratory judgment,” was filed for the plaintiffs by Attorneys Ryke Longest, Director, and Shannon Arata of the Duke Environmental Law and Policy Clinic, and names the Mining and Energy Commission and the NC Department of Environment and Natural Resources as defendants. The plaintiffs argue that the Commission should not have been granted the authority to rule on ordinances by the General Assembly, as it violates the “separation of powers” of the executive and judicial branches of state government, and is the result of action by the legislature, a third government branch.

“Local governments are the first line of defense to protect our citizens and resources from potential harms of any kind, and especially an industry that could provide only a few temporary jobs, and profits only to a few landowners and contractors,” says Darryl Moss, currently serving as Mayor of Creedmoor (Granville County), whose city government passed an ordinance in 2011. “We’re particularly concerned about our limited and vulnerable water supply, which would be threatened by this water-hogging industry which has developed no safe method of storing or treating huge volumes of waste.”

Hope Taylor, Executive Director of Clean Water for NC, points out, “The courts, and not the Mining and Energy Commission, which is stacked with pro-industry legislative appointees, should rule on ordinances enacted by local governments. Last year, tens of thousands of people, including many CWFNC members, commented at hearings or in writing to say the Oil and Gas rules do not come close to protecting their communities. And yet we’ve been told to accept drilling and fracking 650 feet from our homes, drinking water wells and schools, and 200 feet from our streams. If local governments decide democratically to enact protections that their citizens need, the MEC shouldn’t be able to toss them out.”

After years of working closely with other with local Chatham County citizens to implement protections for her county, Martha Girolami says, “There are good reasons for effective statewide regulations, but when that regulatory process is used as a tool to protect industry, rather than people and the environment, people will turn to the officials they connect with most directly and hold most directly accountable—their local governments. I can’t allow my taxes to be used against me and my neighbors to support a Commission that creates a weak statewide system of regulations and then allows that same pseudo-regulatory body to decide whether our local regulations will be allowed to stand.”

The plaintiffs state that they have been “irreparably harmed” by the General Assembly’s grant of judicial authority to the MEC, an administrative Commission, to preempt local ordinances, and they ask for the Court to declare the MEC’s authority unconstitutional under the “separation of powers” principle.

Anna Baucom, who serves as Chairman of the Anson County Board of Commissioners, has been deeply concerned since she first learned about fracking several years ago. The other Anson Board members grew to share that concern; in 2013 they voted unanimously to enact a moratorium on fracking to give them time to develop detailed protections for their county. She experienced pressure from an MEC Commissioner who didn’t want that ordinance to pass.

“The more the MEC tries to shove something down my throat, the more questions I need to ask and the harder I push back… that’s the way our democracy, and especially our local governments, should work. These Commissioners don’t act reasonably and impartially, like judges. Only the courts should have the right to decide if the ordinance we passed to protect our County should stand.”

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The full May 1st filing of the Complaint for Declaratory Judgement is available here.

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